Moving Forward (at Last) on Federal Rule Changes

WASHINGTON -- A tumultuous three months of back-and-forth between U.S. Department of Education officials and representatives across higher education culminated last week in proposals that clarify and update existing rules around digital learning and innovation.

Advocates for online learning and other emerging education models found plenty to celebrate as the process wrapped up. The final proposed rules include language that mitigates ambiguity around phrases like “distance education” and “regular and substantive interaction,” which have long puzzled institutions developing programs for an increasingly diverse set of learners.

Meanwhile, the Department of Education abandoned several controversial proposals from the beginning of the process, including eliminating the federal credit-hour standard and removing the cap on outsourcing of academic programs, amid widespread criticism.

Still, critics of the process and the proposed changes continue to worry that the new rules as written remove vital checks on new programs and providers and could open the door to abuses of students. Fittingly, some elements of the proposed rules, like a waiver process of sorts for institutions eager to bypass accreditation for innovative programs, will require further clarification.

The department in January laid out a wide range of priorities for this year’s negotiated rule-making process, a formal convening to hash out federal rules that clarify existing laws. A main committee of negotiators met for 14 full days from January to April, and each of three subcommittees spent six daylong sessions debating portions of the proposed rules.

The goal of each negotiated rule-making process is for participants to formally reach consensus on proposed rules. This time they did, which means the department is legally obligated to put those proposals through a public comment period before preparing to implement them. If they hadn’t, the department itself could have rewritten the proposals.

The earliest the rules could go into effect is July 2020, though the implementation process could extend into 2021, after the next presidential election. Diane Auer Jones, the Education Department’s principal deputy under secretary, told reporters on Thursday that the new set of proposed rules represents “the start of a conversation, not the end.”

Overall Reaction

According to some observers of the negotiations, consensus was achieved in part due to a last-minute effort on the part of some negotiators to persuade skeptics to sign on to their policies, at the risk of otherwise deferring to the department.

Jones dismissed such criticisms during a call last Thursday with reporters. “We have demonstrated that even when people don’t agree on everything, or even on most things, if you can sit around the table and dialogue, you can come around to a consensus that isn’t just a compromise, but it’s an informed position that is most likely the place you ought to be,” she said.

The proposed rules place on accreditors the burden of adjudicating and facilitating innovation, according to Russell Poulin, deputy director of research, policy and strategic initiatives for the WICHE Cooperative for Educational Technologies.

“The accrediting agencies wanted more leeway,” Poulin said. “They now are given that responsibility, and they have to show that they deserved that trust in doing that.”

The process and the resulting regulations remain frustrating for consumer advocates, who called for a stronger focus on collecting data on student outcomes in order to measure an “innovative” program’s quality and financial aid eligibility.

Jessica Ranucci, a lawyer for the New York Legal Assistance Group, said she’s disappointed that vision didn’t come to fruition. From her vantage point, loosening restrictions also removes vital protections.

“It felt very disconnected to be having the kind of conversations that were in the neg reg that seemed totally divorced from what’s happening in the real world where students are getting hurt and schools are shutting down,” Ranucci said. “I don’t think that the deregulatory agenda makes sense given the context.”

Notable changes amid hundreds of pages of rewritten regulations will likely trickle out in the coming weeks and months. Below are a few key areas of interest, and a few early reactions as opinions continue to form.

“Regular and Substantive Interaction”

Before Neg Reg: The current iteration of the Higher Education Act, a set of federal laws last updated in 2008, requires online programs receiving federal financial aid to include “regular and substantive interaction” between the instructor and students. Current regulations don’t define “regular and substantive,” as Western Governors University learned from the department’s inspector general. In January the department proposed allowing accreditors to create their own definitions.

After Neg Reg:

• To comply with the “regular” requirement, instructors must allow students opportunities to interact “commensurate with the length of time and the amount of content in the course or competency.” They must also proactively monitor students’ engagement and intervene if necessary or if the student asks.
• Instructors must practice at least two of the following to comply with the “substantive” interaction requirement.
  • Provide direct instruction
  • Offer feedback on assignments
  • Provide information or answer questions on course or competency content
  • Facilitate group discussions
  • Other activities approved by the program’s accreditor

Reaction: The new definitions will provide needed clarity to institutions that previously had to develop their own interpretations of opaque regulations, according to Leah Matthews, executive director of the Distance Education Accrediting Commission.

Even so, further clarification will likely be necessary, Poulin said. He’s not sure, for instance, to what extent accreditors are permitted to approve programs that meet only two of the numerous qualities of “substantive” interaction.

The Role of the Distance Education Instructor

Before: Existing rules didn’t define the role of an instructor in a distance education program.

After: New proposed rules defer each program's definition of an “instructor” to the institutional accreditor for that college or university, though they do require that the instructor be “responsible for delivering course content.” The rules now specify that eligible programs can be taught by “the instructor or instructors,” a nod to nontraditional programs taught by teams of instructors who divide instruction, grading and other responsibilities.

Reaction: Bob Collins, vice president of financial aid at Western Governors University, had been hoping the panel would approve an earlier proposal to make explicit in regulations the value of an “instructional team,” but he likes that accreditors will decide who counts as an instructor.

State Authorization

Before: The Education Department proposed to eliminate state authorization rules developed by the Obama administration in its opening position document for this round of negotiated rule making. The Obama-era regulations, published in December 2016, were due to go into effect in July 2018. But department officials delayed the rules for two years after some higher education groups complained there was confusion about how to implement them. The 2016 rules required all higher education institutions offering online programs to demonstrate they are authorized to operate in every state where they enroll students in receipt of federal financial aid.

After: The committee agreed on language comparable to what was published in 2016 -- but with some important tweaks. The language now states that institutions must meet the requirements of the state where they determine students are located, rather than where students reside -- a key sticking point for institutions trying to understand how to implement the rules.

Reaction: Clare McCann, deputy director for federal policy at New America’s higher education initiative, said this negotiated rule-making session ended more or less where it started when it comes to state authorization, but with weakened protections for students regarding disclosures. McCann believes the department could have easily cleared up confusion over the 2016 language with simple guidance and described the department’s delay of the rules as “unlawful and unwarranted.”

Two union groups, the National Education Association and the California Teachers Association, are suing the department for “illegally” delaying the state authorization rules. The court case is ongoing.

Direct Assessment

Before: Each new program developed in this model, which involves measuring student knowledge and learning rather than linking outcomes to seat time and grades, must be approved by the secretary of education after passing through accreditation.

After: If the new rules go into effect, institutions will still be required to get the secretary’s approval for their first new direct-assessment program. But subsequent programs from the same institutions can bypass the secretary if they’re at an “equivalent or lower academic level.”

Reaction: This approach mirrors the gradual support for distance education, according to Poulin. “I think once [institutions with direct-assessment programs] get going, unless there’s some reason for the Education Department to get involved, it doesn’t seem to make sense for them to have to approve every program,” he said.

Waiver for Special Circumstances, Variety and Innovation

New: Accreditors would have broad authority to permit institutions not to comply with one or more of their rules. Justifications for failing to comply with the accreditors’ rules could include suffering from a natural disaster, reacting to changes in state licensure requirements or having qualified instructors in dual-enrollment or career and technical programs that don’t meet the accreditors’ typical standards for faculty.

Reaction: Matthews said she anticipates her organization’s board won’t support taking much advantage of this policy.

“I know our schools will want to see it. At the end of the day, our responsibility is to the students and the public and the consumers,” Matthews said. “That means being incredibly diligent and responsible about quality.”

Poulin hopes that provision sets a precedent for crafting regulations that account for rapid technological advancements and their effect on education.

“If we create some other mode of education in the next few years that we can’t even imagine, are we going to wait out until the 2040s until we finally solve what the financial aid rules should be?” he said. “I hope not.”

Lindsay McKenzie contributed reporting.